Transfer/Discharge

Transfer and Discharge continues to be one of the top complaints that ombudsmen report encountering, and these cases can be complex and extremely time consuming. The threat of transfer or discharge from a nursing home can be both frightening and stressful for residents and their families. Too often, a facility may respond to resident’s difficulties or increasing need for care or repeated questions or complaints from family members by transferring or discharging the resident. The Nursing Home Reform Law of 1987 protects residents from involuntary transfer and discharge.

Information from CMS

CMS Memo - An Initiative to Address Facility Initiated Discharges that Violate Federal Regulations (January 22, 2018)
This memo is from CMS to State Survey Agency Directors. Federal regulations allow facilities to initiate discharges of residents only in specific instances. Despite these protections, discharges which violate Federal regulations continue to be one of the most frequent complaints made to State Long-Term Care Ombudsman Programs. CMS has begun an initiative to examine and mitigate facility-initiated discharges that violate federal regulations. CMS is examining State survey agency’s intake and triage practices for these type of discharge complaints, developing examples of inappropriate and appropriate discharges for surveyors, identifying best practices for nursing homes, developing training and evaluating enforcement options for these types violations. Civil Money Penalty (CMP) Reinvestment Projects Assistance. CMS is encouraging States to pursue CMP-funded projects that may help prevent facility initiated discharges that violate federal regulations.

Jimmo Settlement Agreement Webpage (August 2017)
CMS has launched a new webpage on the Jimmo Settlement Agreement. The Jimmo Settlement agreement clarified that the Medicare program covers skilled nursing care and skilled therapy services when a beneficiary needs skilled care in order to maintain function or to prevent or slow decline. Specifically, the Jimmo Settlement requried manual revisions to restate a "maintenance coverage standard" for both skilled nursing and therapy services. The Jimmo Settlement may reflect a change in practcie for those providers or others who have erroneously believed that the Medicare program covers nursing and therapy services only when a beneficiary is expected to improve. The new Jimmo Settlement Webpage provides background on the settlement, links to resources and Frequently Asked Questions.

Clarification from CMS on Discharge of Medicare Recipients
This clarification was sent from CMS to West Virginia's Survey & Certification agency and states that notices of Medicare non-coverage are not the same thing as a discharge notice and that a nursing facility is required to issue a discharge notice when Medicare payment is ending.

CMS S&C Memo - Copies of Transfer/Discharge Notices
CMS issued a Survey and Certification memo (17-27-NH) on May 12, 2017 that provides clarification regarding copies of transfer and discharge notices to a representative of the Office of the State Long-Term Care Ombudsman and information regarding the new definition of SQC (substandard quality of care) and implementation of the provisions regarding SQC. Additional CMS S&C memos are posted to their website here.

CMS Sends Letter to California Regarding Enforcement of Appeal Decisions of Involuntary Transfers and Discharges
CMS has sent a letter to the California Department of Health Care Services reminding the state that they must "establish a system for adjudicating residents' appeals of involuntary transfers and discharges from nursing facilities in compliance with federal standards." The letter came in response to a letter AARP sent to the U.S. Department of Health & Human Services Office of Civil Rights regarding the failure of the California Health and Human Services Agency to enforce administrative decisions under the Nursing Home Reform Act. The letter to California reiterates that if during an appeal of involuntary transfers and discharges from nursing facilities, the hearing officer rules in favor of the resident, the agency must enforce that decision promptly and effectively. The letter reiterates the same guidance sent to the California Department of Public Health's Center for Health Care Quality in 2012. Read the letter here.

What is in Federal Law

This webinar hosted by the National Consumer Law Center (NCLC) detailed the transfer and discharge provisions of the Nursing Home Reform Law and provided strategies and resources on handling transfer discharge cases. Presenters included Lori Smetanka, Director of the National Long-Term Care Ombudsman Resource Center (NORC); Eric Carlson, Directing Attorney at the National Senior Citizens Law Center (NSCLC); and Mary Ann Parker, attorney for the D.C. Long-Term Care Ombudsman Program/Legal Counsel for the Elderly.

Involuntary Transfer and Discharge Factsheet
This factsheet produced by the National Consumer Voice for Quality Long-Term Care gives consumers details on what the law says about transfer/discharge, notification, time limits, bedholds and readmission, appeals, etc.

State Resources/Guidance

This toolkit was developed by the Minnesota Ombudsman Program and shows how the program has approached the systemic problem of residents not being allowed to return to their skilled nursing facility (SNF) following a transfer to a hospital. This work was in response to an increase in calls from hospital discharge planners. The program is also developing materials for a provider audience. The curriculum is entitled: Let Me Return Home or LMRH. Below are materials that comprise the LMRH-NH toolkit that the ombudsman program has worked on since 2013.

Phase 1: Development of training materials and resources for hospital discharge planners.
Phase 2: Improve regional ombudsman advocacy skills through co-training with the Department of Human Services Nursing Facility Rates and Policy and connecting with legal partners to create a letter to facility administrators summarizing the regulation and seeking collaborative dialogue to resolve the issues.

Let Me Return Home Curriculum PowerPoint
This is the tool used when conducting the training for hospital discharge planners. The purpose is to work through the presentation interactively, and then reference how they can use the tools below as appendices. The presentation is designed to seek audience feedback and commentary that defines the severity and scope of the problem from the hospital discharge planning and resident perspective.

​​​​Discharge Planners can keep this at their desk or in a publically handy location so that they can refresh their memory of the applicable regulations and options before calling back staff at the nursing home to discuss a discharge.

Appendix B – Copy of applicable regulation and guidance to surveyor from the SOMs

Involuntary Transfer or Discharge Toolkit (November 2010)
This guide developed by the Illinois Long-Term Care Ombudsman Program offers Ombudsmen information and guidance for assisting residents when a facility is threatening to issue a notice of involuntary transfer /discharge or after a notice of involuntary transfer/discharge has been issued. The toolkit contains information on state and federal regulations and federal laws and also offers Ombudsmen suggestions about what to do in discharge situations.

Model Resident Transfer and Discharge Plan for Nursing Homes and Community Resident Facilities (November 2004)
This model discharge plan developed by the District of Columbia Department of Health is intended to ensure the safe and orderly removal of residents and protect residents' rights in the event of a transfer or discharge. The plan is followed whenever a resident is transferred or discharged voluntarily or involuntarily, and includes provisions on adequate notice, resident assessment and staff training.

Paschall v. DC Department of Health (April 2005)
This ruling gave Administrative Law Judges in the District of Columbia the authority to readmit a resident into a facility if the reason for transfer or discharge given by the facility was ruled invalid.

Role of the Long-Term Care Ombudsman in Involuntary Transfer/Discharge (May 2011)
This memorandum from Alice Hedt, the Maryland State Long-Term Care Ombudsman, detailing how Maryland LTCOs assist individuals receiving an involuntary discharge notice from a facility, the services ombudsmen are able to provide, ombudsmen representation in hearings and legal services ombudsmen use or refer to for assistance in hearings.

Nursing Home Discharges, Transfers and Room Changes: Know Your Rights
This brochure produced by the State of Nevada Division for Aging Services details residents' rights in state and federal law in the event of a discharge, transfer or room change. It also relates how the Long-Term Care Ombudsman Program can assist residents in these situations.

Sample Notices

Nursing Home Transfer and Discharge Notice (Florida)
This sample form from the state of Florida is required for those transfers or discharges initiated by the nursing home facility, and not by the resident or by the resident’s physician or legal guardian or representative.

Ombudsman Best Practices

Involuntary Transfer and Discharge: Hot Topic Issues (October 2013)
This session from the 37th annual Consumer Voice conference discusses strategies and best practices for preventing and advocating for residents facing involuntary discharge from a nursing home. Considers how those strategies, best practices change/stay the same if the resident is in assisted living. Reviews best practices for supporting residents and families, identifying legal support, appealing discharge notices, and more.

South Carolina
The South Carolina LTCOP developed a program to assist residents that are moving out of a facility by providing them with boxes, bags or luggage for their belongings. The SLTCO spoke with various organizations and the Chief of Staff spoke to a nonprofit organization that agreed to donate 50 emergency relocation bags each year. The bag contains a bible, jacket, pillow, underwear, socks, a sweat suit, hygiene products, Depends, blanket, towels, cup and a laundry bag. This program has made a tremendous impact on the residents and they are appreciative of the fact that others care about their welfare. Residents are now able to move to another facility with dignity. (2013)

The Consumer Voice envisions a world in which all consumers of long-term care, services and supports are treated with respect and dignity and have a wide range of aﬀordable, quality options across all settings.